Supreme Court New South Wales Medium Neutral Citation: Balach v Office of the Director of Public Prosecutions [2019] NSWSC 377 Hearing dates: 2 April 2019 Date of orders: 02 April 2019 Decision date: 02 April 2019 Jurisdiction: Common Law Before: Campbell J Decision: Orders in accordance with the consent order (see paragraph [14]) Catchwords: CRIMINAL LAW – Section 52, crimes appeal and review Act – Appeal to Supreme Court – person convicted or sentenced in Local Court has right to appeal to Supreme Court – ground must involve question of law – magistrate erred because reasons did not adhere to legal standard – conviction and sentence quashed – matter remitted to Local Court CRIMINAL LAW – Local Court – crimes sentencing procedure Act – section 10 – practice and procedure –absence of the defendant Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 52 Criminal Procedure Act 1986 (NSW), ss 182, 209 Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 Cases Cited: Hayes v Office of the Director of Public Prosecutions [2019] NSWSC 378 Roylance v Director of Public Prosecutions [2018] NSWSC 933 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Category: Procedural and other rulings Parties: Mir Muhammad Balach (Plaintiff) Office of the Director of Public Prosecutions (Defendant) Representation: Counsel: M. Burke (Plaintiff) W. Langley (Defendant) Solicitors: Armstrong Legal (Plaintiff) File Number(s): 2918/59826 Extempore Judgment (revised) 1. Earlier today in the matter of Hayes v The Director of Public Prosecutions [2019] NSWSC 378 I gave reasons for allowing an appeal by consent which deal with the judicial obligation of magistrates to give reasons in matters to which s 182 of the Criminal Procedure Act 1986 (NSW) applies. I made observations about the need, in appropriate cases, to consider whether, even when the matter is dealt with in the absence of the defendant, because of the operation of s 182(3), s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) applies. I will not repeat what I said in the case of Hayes but this judgment should be read in the light of the reasons I gave then. 2. The appeal is brought to this Court under the provisions of s 52(1) of the Crimes (Appeal and Review) Act 2001 (NSW) which provides a right of appeal to this Court to a person convicted or sentenced in the Local Court but "only on a ground that involves a question of law alone". The parties agree that the learned magistrate's decision is affected by an error of law because the reasons given fail to measure up to the legal standard. I agree this ground involves a question of law alone, as is clearly established by the authorities: eg Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247. 3. The plaintiff was pulled over for a random breath test at 1.53am on 23 December 2017. The roadside teat was positive, and a breath analysis test at Redfern Police Station returned a reading of 0.052 grams of alcohol in 210 litres of breath. That, of course, is just over the low range threshold. 4. A court attendance notice was issued and the plaintiff sought to take advantage of the written plea procedure under s 182 of the Criminal Procedure Act. He provided a covering letter, indicated he was pleading guilty and, in mitigation, wrote: I request honourable jury (sic) that I have been in country from last eight years with no criminal history. Now I am leaving for good. I miss judge (sic) my calculations slightly, therefore low range came in RBT. I kindly request jury to consider my circumstances. If the near future I visit this beautiful country so I don't have any issues. Thanks. The plaintiff is a native of the Islamic Republic of Pakistan. He held an international licence from that country and had been in Australia on a student visa studying accountancy. 1. I should also say that he told the police at the time of his arrest that he had consumed about five alcoholic drinks, including shots and cocktails, between 5pm and 6.30pm on 22 December 2017. This is about eight hours before he was breath-tested. 2. He wrote a letter to the Court dated 31 December 2017 in which he made the following substantial points: He said his circumstances are exceptional; he requested "the jury" to decide the case in his absence since he was leaving the country, which he substantiated that with a copy of his one-way airline booking confirmation; and he gave no forwarding address in Pakistan. 3. The matter came before her Honour Magistrate Milledge on 22 January 2018. I point out, under s 182(3), a person who takes advantage of the s 182 procedure is not required to attend court and is taken to have attended before the Court on the date the matter was dealt with. As I refer to in my earlier judgment, s 193 is applicable because it requires the Court, in the case of a guilty plea, if the accused person does not show cause why he or she should not be convicted, or have not an order made against him or her, to convict on the plea of guilty. I have also referred in Hayes to s 209 of the Criminal Procedure Act which makes clear that s 10 applies to proceedings heard in the absence of the accused person. 4. The entirety of the transcript of the hearing before her Honour is as follows: HER HONOUR: Mr Balach, low range drink driving, a plea of guilty, 182. He says he is leaving the country for good, so he says. A FINE OF $500, DISQUALIFIED FOR 3 MONTHS STARTING TODAY'S DATE WHICH IS 22/01/18. Even though it's a low reading, I cannot put him on a bond because he is not here. I emphasise because he is not here and he says he is leaving the country. REGISTRAR TO NOTIFY THE DEFENDANT OF DISQUALIFICATION. 1. The principles relating to the obligations of magistrates to give reasons in this context were discussed by Bellew J in Roylance v Director of Public Prosecutions [2018] NSWSC 933 (at [12]-[15]) which I set out: A judicial officer is obliged to give reasons for his or her decision. As a general proposition that will require a record of the facts upon which the conclusion is based, and the process of reasoning by which the conclusion is reached. Failure to provide adequate reasons is an error of law. What is adequate must be assessed according to the circumstances of each individual case. There is a need to make proper allowance for ex-tempore decisions delivered in a busy Local Court which has an extremely heavy workload. An appellate Court must read the reasons fairly, making due allowance for the circumstances in which they were delivered, and without overly scrutinizing them. An appellate Court must also recognise the desirability of matters in a busy Local Court being determined expeditiously. Proper allowance must also be made for cases that are heard on an ex-parte basis which are often dealt with informally. In the context of the present case, it is also important to recognise that the obligation of a judicial officer to give reasons extends to sentence proceedings. In R v JCE [2000] NSWCCA 498; 120 A Crim R 18 Fitzgerald JA (commencing at [19]) made a number of observations as to that obligation. His Honour observed that the duty of a sentencing Judge to give reasons for sentence extends to a duty to explain his or her decision, and that this may require discussing sentencing options, and giving reasons as to why particular options were not adopted. That is not to say that it will be necessary for every possibility to be discussed in every case. However, an obligation remains upon a sentencing Judge to explain the reasons why he or she imposed the sentence that was imposed. In the present case the proceedings against the plaintiff were dealt with on an ex-parte basis, following which the Magistrate delivered ex-tempore reasons. Even making allowance for those circumstances, the Magistrate remained under a duty to give reasons in a way which expressed his findings clearly, and which enabled the parties to understand the basis for his decision to record a conviction and impose a fine in each case. In my view, the reasons do not satisfy that test. There is a passing reference to the character references relied upon by the plaintiff, but there is no indication of how (if at all) that material was taken into account. Perhaps even more fundamentally, it is not apparent from the reasons how and why the Magistrate determined that it was appropriate to impose a fine of $330.00 in each case. It would not be possible for either party to determine the basis upon which the Magistrate reached his decision by reading the reasons. 1. I observe that the discharge of the obligation need not be onerous, nor the reasoning elaborate, given the workload that magistrates confront each day. Succinctness is a virtue that should be strived for. As McHugh JA (as his Honour then was) said in Soulemezis (at 282D) where no appeal lies against findings of fact (as here) it is enough if the "judgment reveals the ground for, although not the detailed reasoning in support of, [the] finding of fact." 2. However, it is necessary, as Bellew J said, that the decision be explained. I must say that her Honour went some way towards that with her pithy remarks after she indicated the penalty that would be imposed. However, with respect, it was not quite sufficient and, for the reasons I discussed in Hayes, although this is not the subject of the parties' agreement, I think, with respect, that her Honour fell into error by saying "I cannot put him on a bond because he is not here". 3. If there is a practice in the Local Court of not considering s 10 of the Sentencing Procedure Act when matters are dealt with under s 182, for the reasons I have discussed in Hayes, I am of the view that it is contrary to law. The practice should no longer be followed. Naturally, most cases will not raise s 10, and it need not be expressly adverted to in reasons given in those cases, s 209 of the Criminal Procedure Act notwithstanding. But this case did raise s 10, in as much as it was a very low reading, as her Honour observed, the plaintiff had no criminal record and, apparently, on the material he provided, he was otherwise a person of good character. Her Honour was not bound to give him a s 10 bond, of course, but the issue was squarely raised even in the terse or taciturn material that she had before her. 4. I am satisfied that, in accordance with the agreement of the parties, a ground of appeal under s 52 has been made out. Because of the plaintiff's absence overseas, the summons was filed out of time. There is no objection to an extension of time from the Director. I am satisfied from the affidavit of his solicitor Martin Vazquez, affirmed on 1 March 2019, that time should be extended until the date of the filing of the summons, which was 14 December 2018. 5. The parties have provided a form of consent order and I am happy to make orders in those terms: 1. The time for commencing the appeal is extended to the date on which the summons was filed, namely, 14 December 2018. 2. Declare that the learned magistrate erred in law by failing to give adequate reasons for convicting and sentencing the plaintiff on 22 January 2018 for the offence of driving with low range PCA. 3. The plaintiff's conviction and sentence imposed on 22 January 2018 is quashed. 4. The matter is remitted to the Local Court to be dealt according to law. 5. Each party pay his own costs. ********** Amendments 14 May 2019 - Representation: Amendment to counsel and solicitors for the plaintiff DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 May 2019